A  Will means that after you have died your affairs will be administered in accordance with your wishes and not just as the law dictates, but ask yourself what would happen if you were laid up temporarily or permanently by illness or accident? Who would pay the bills, do the banking and cover the many other financial transactions we all have to do as part of daily life. Standing orders and direct debits only go so far, but what if there is no one who knows how to check them? Moreover, if important medical or care decisions arise -which course of treatment- which operation- who makes the decision if we are not capable ourselves?

 Here is a cautionary tale.

A  gentleman in his later years was admitted to a Glasgow hospital after a fall. A successful operation put right the broken bones and a slow and lengthy hospital convalescence followed. Some months later the gentleman was ready to be discharged as his fractures had completely healed. Regrettably, however ,  through an entirely separate illness his mental powers had deteriorated  whilst he was resident in hospital,  such that he was no longer capable of taking decisions.

It was clear that the patient could not stay on his own and required to go into care. His family found an excellent Residential Home which had a room immediately available, so it appeared a satisfactory outcome had emerged to the trauma which had begun on the day of the fall.

Not so: the problems were far from over .At a practical level, all that was required was for the gentleman to be  taken from the hospital to the Home by taxi or ambulance, only a short distance across the city. Everyone was in favour. The hospital wanted to discharge their patient, the Home wanted to receive their new resident ,the family were desperate for the move of their father to a more appropriate environment and indeed the patient seemed happy enough with the idea.

Unfortunately nothing could happen, in view of the client’s loss of mental capacity. It was here that Mitchells Roberton  were consulted .Notwithstanding that everyone involved in their client’s present and future care wanted the transfer to take place, neither the hospital nor his social worker could permit the move. In the eyes of the law the client had become what is called a “compliant adult” legally incapable of consenting to or disagreeing with the transfer and so had fallen foul of The European Convention of Human Rights ,Article 5 which states :-

“Everyone has the right to liberty……no one shall be deprived of his liberty save…..in accordance with a procedure prescribed by law.”

The Courts in Scotland have interpreted this as meaning that a “compliant adult”, legally incapable of agreeing to one care regime or another, is deprived of his liberty in breach of Article 5. Not only could the patient not be moved, he was strictly speaking being detained only on an informal basis, without consent or authority. There was no consent as the “compliant adult” was unable to provide consent by virtue of his condition and there was no one with the requisite authority appointed “in accordance with a procedure prescribed by law.” In the circumstances for the patient to have been discharged and moved to another care environment would have been quite wrongful, however desirable.

The Courts deemed the appropriate action to be the grant of a Guardianship Order under the Adults with Incapacity Act on the basis that only this way would the necessary safe guards and statutory  and regulatory framework to protect the adult come into play. The family had to petition the Court for the appointment of a Welfare Guardian, in other words a guardian with specific powers to enable decisions to be taken in respect of matters of personal care and welfare such as in relation to residence, which guardian hardly surprisingly  turned out to be the close family member whom the client was more than likely to have asked to be the Attorney in the first place ! Even though pursued as a matter of urgency and with Decree being granted on an interim basis, the matter consumed considerable amounts of time, energy ,expense  and worry.

The problem would have been solved if the adult had at some point in the past granted a Power of Attorney, containing welfare powers, which could have come into force when capacity was lost and would have enabled the client to be moved from the hospital to the Home at the earliest date, on the decision of the appointed attorney.

Obtaining a Power of Attorney is not difficult. We can draft deeds adjusted in accordance with individual requirements and guide clients through the execution and registration processes.

If you believe having a will is important and let’s be honest it’s likely that you do –then you will probably believe a Power of Attorney is a Good Idea. So please take it further and start the conversation about a Power of Attorney. If you would like us to help call Kathryn Bready on 0141 552 3422 or e mail kb@mitchells-roberton.co.uk